Supercross Opinion Leaves Many Open Questions

Thanks to Evan Brown, I learned of the N.D. Texas opinion in Live Nation Motor Sports v. Davis. The case is about whether "webcasts" (or perhaps just a link) posted by www.supercrosslive.com infringe the copyright of SFX, a division of Clear Channel.

The opinion is disturbing for those involved webcasting or those making any distribution of on-line media by way of linking, framing, streaming or webcasting. The reason the opinion is disturbing is its ambiguous recitation of the critical facts in the case. Evan explains the confusion and points to the Perfect 10 v. Google case that was recently argued at the 9th Circuit. William Patry also finds the opinion "somewhat ambiguous" and has an excellent explanation about why the missing facts are so critical (and the comments on Patry's blog are insightful too). (See also others discussing this from Techmeme.) (Click on the read more link for more.)

Evan pointed me to the attached Proposed Findings of Fact filed by the plaintiffs in which paragraph 8 makes a complete mess in explaining the conduct that allegedly infringes SFX's copyright. Paragraph 8 reads:

8. The Defendants are displaying and performing SFX's Audio Broadcasts on their website through a process known as "streaming." Basically, the Defendants are transferring SFX's Audio Web Casts to their website and thereby displaying or performing the Audio Web Casts at their website in 'real time.' The Defendants admit this in their Sixth Affirmative Defense in which they state that Trippleclamps does not copy SFX's Audio Web Casts but rather broadcasts or performs the 'same audio web cast.'

Sometimes, when your case isn't particularly strong, it may be better to employ a vagueness strategy and hope the court won't notice (or won't want to get bogged down in the details). This might be especially effective when your opponent is representing him/herself. Not having seen the rest of the record, I don't know for sure if that's what happened here, but I suspect this is the case because the opinion, as Patry points out, leaves so many factual questions open.

The two passages in the opinion that worry me the most are these:

Opinions addressing copyright protection for live television broadcasts, however, provide appropriate, analagous guidance in this case.

This passage is consistent with what I worry about "internet law" opinions, generally. Courts will take off-line examples to bolster their opinions, even when the analogy to the digital space is not exactly right. Here, the court analogized to the NFL case which, as Patry discusses, is "completely wrong".

Similarly, the court finds that the unauthorized “link” to the live webcasts that Davis provides on his website would likely qualify as a copied display or performance of SFX's copyrightable material.

I predict that many unscrupulous copyright owners (or their attorneys) will drop this quote out of context into cease and desist letters to bolster their threats of infringement. In this case, the question I have is was the defendant really linking or was he framing the content (or doing something else)? (And since when is a mere link something that will get you into copyright trouble?)

Finally, Evan explains in a comment on Patry's blog the impact this could have on podcasters. He writes:

This is a case that could have implications in podcasting. One could extend the holding to mean that infringement occurs when simply by linking to an mp3 file on another's server, thereby creating an enclosure in your feed, you may have undertaken an unauthorized distribution, performance or display of the enclosed work, notwithstanding the fact that it is still downloaded from the original producer's server.

He makes a good point about how this may impact podcasters. I wonder, also, about the links from within iTunes to topics discussed on a podcast. Not to sound too alarmist, but this could be a serious problem.

Another commenter on Patry's blog reminds us that this may be a case that should be taken up on appeal for the defendant given its potential impact on new media. That's definitely worth consideration. Perhaps a legal defense fund can be established, and a group of attorneys can divide and conquer the work on this appeal... I'd consider that.

{UPDATE 12/24/06} An anonymous commenter on Patry's blog suggests that the infringing site is at this link. Perhaps more investigation is necessary before the defendant's conduct is considered legit, but the crux of the problem here is that the court's opinion is totally unclear, which can lead to serious problems when trying to apply such precedent to future matters.

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